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An Integrated Response to Sexting: Utilization of Parents and Schools in Deterrence

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An Integrated Response to Sexting: Utilization of Parents and Schools in Deterrence Journal of Contemporary Health Law & Policy (1985-2015) Volume 27 Issue 2 Article 7 2011 An Integrated Response to Sexting: Utilization of Parents and Schools in Deterrence Sarah Theodore Follow this and additional works at: https://scholarship.law.edu/jchlp Recommended Citation Sarah Theodore, An Integrated Response to Sexting: Utilization of Parents and Schools in Deterrence, 27 J. Contemp. Health L. & Pol'y 365 (2011). Available at: https://scholarship.law.edu/jchlp/vol27/iss2/7 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Journal of Contemporary Health Law & Policy (1985-2015) by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. AN INTEGRATED RESPONSE TO SEXTING: UTILIZATION OF PARENTS AND SCHOOLS IN DETERRENCE Sarah Theodore* Internet pornography is one of the fastest growing businesses, generating enormous revenues in the process. Unfortunately, with the expanding market for Internet pornography, there has been a rise in the demand for child pornography.2 Between 1996 and 2007, over 9,000 arrests were made relating to online child pornography.3 Congress and all fifty states have outlawed the production and possession of child pornography.4 However a J.D. Candidate, The Catholic University of America, Columbus School of Law, May 2012; B.S., 2008, The University of Georgia. The author would like to thank her family and friends, especially her mom Julie Doppler, for all their love and support. The author would also like to thank the editors and staffers of The Journal of Contemporary Health Law and Policy Vol. XXVII and expert reader, Professor Mary G. Leary, for their hard work and input. 1. See Jerry Ropeleto, Internet PornographyStatistics, TOP TEN REVIEWS, http://internet-filter-review.toptenreviews.com/intemet-pornography-statistics.html (last visited Feb. 21, 2011) (stating that pornography revenues are larger than Microsoft, Google, Amazon, eBay, Apple and Netflix combined, with revenues reaching $97.06 billion in 2006). 2. See generally National PornographyStatistics, BYU WOMEN'S SERVS., BRIGHAM YOUNG UNIV., https://wsr.byu.edu/content/national-pornography-statistics (last visited Feb. 9, 2011) (citing statistics that child pornography generates three billion dollars each year, and there are over a hundred thousand websites offering illegal child pornography images). 3. Online ChildPornography/Child Sexual Exploitation Investigations, FED. BUREAU OF INVESTIGATION, http://www.fbi.gov/stats-services/publications/innocent- images-1/innocent-images-national-initiative (last visited Feb. 7, 2011). 4. Laws Concerning ChildPornography, NAT'L CTR FOR MISSING & EXPLOITED CHILDREN, http://www.missingkids.com/ missingkids/servlet/PageServlet?Language Country-en US&Pageld=1476#7 (last visited Mar. 24, 2010); Ferber v. New York, 458 U.S. 747, 747 (1982) (holding that states are allowed to regulate "pornographic depictions of children" because the "legislative judgment that the use of children as subjects of pornographic materials is harmful to the physiological, emotional and mental health of the child, easily passing muster under the First Amendment."). In addition, the 365 366 The Journal of Contemporary Health Law and Policy Vol. XXVII:2 new question has arisen: What happens when the child voluntarily creates the pornography and disseminates it himself? In the United States, sixty-six percent of teenagers between the ages of eight and eighteen own their own cell phones, which is an explosion from thirty-nine percent five years ago.s That same demographic is sending, on average, 118 text messages per day. 6 While owning a cell phone and sending text messages are harmless activities unto themselves, juveniles that choose to explore their sexuality through the use of cell phones create an interesting problem. Among children between the ages of twelve and seventeen, four percent have sent sexually suggestive, nude or nearly nude images to someone else by text message, and fifteen percent of teens with a cell phone have received sexually suggestive, nude or nearly nude images. Juveniles' involvement in sexting is becoming an increasing problem that will likely worsen as usage of new technology amplifies. 9 Despite statutory provisions allowing for the prosecution of parties involved in the voluntary creation of child pornography, states continue to experience difficulty in Court said that it was "evident beyond the need for elaboration" that the interest in protecting children from the harmful effects of child pornography was "compelling." Id. at 756-57. The Court also recognized that the possession and distribution of child pornography is related to the sexual abuse of children. Id. at 759. 5. VICTORIA J. RIDEOUT ET AL., THE KAISER FAMILY FOUND., GENERATION M2: MEDIA INTHE LIVES OF 8-18 YEAR OLDS 18 (Jan. 2010), http://www.kff.org/entmedial upload/8010.pdf. 6. Id. 7. AMANDA LENHART, PEW RESEARCH CTR., TEENS AND SEXTING: How AND WHY MINOR TEENS ARE SENDING SUGGESTIVE NUDE OR NEARLY NUDE IMAGES VIA TEXT MESSAGING 2 (Dec. 15, 2009), http://www.pewintemet.org/-/media//Files/Reports/2009/ PIPTeens-and Sexting.pdf. 8. Id. 9. RIDEOUT ET AL., supranote 5, at 2, 21 (comparing a 2004 report, showing that teenagers spend, on average, six and a half hours a day with media and a 2009 report showing that teenagers spend seven and a half hours a day with media. With multi- tasking, teenagers are packing ten hours of use into those seven and a half hours, and this occurs seven days a week. Currently, eighty-four percent of teenagers have Internet access at home, which is up from seventy-four percent in 1999.). 2011 An IntegratedResponse to Sexting 367 curbing this unfortunate trend. 0 Legislatures are looking for new ways to prevent the creation of child pornography by juveniles without throwing the full weight of child pornography laws onto them." New and creative methods of enforcement and deterrence are necessary to stop the growing trend and properly address a delicate class of citizens. This Note proposes a coordinated response between prosecutors, school officials, and parents in order to have a greater effect than prosecution alone on deterrence and punishment of juveniles involved in sexting. Part I discusses how sexting is defined and distinguishes sexting from traditional child pornography definitions. Part II explores the harms caused by child pornography and the consequences of juvenile participation in its production. Part III examines the gap in the current legislative responses and prosecution efforts. Part IV proposes a coordinated response involving prosecutors, parents, and schools to facilitate prevention and punishment of juvenile sexting. I. WHAT IS SEXTING? IS SEXTING CHILD PORNOGRAPHY? WHO IS SEXTING? A. The Definition of Sexting "Sexting" is a term often used to describe a minor's sending sexually explicit messages or taking sexually explicit pictures and transmitting them to their peers, but not a minor's sending these messages or pictures to adults.12 Juveniles can play various roles in the creation and sending of a "sext:" there is the person in the picture, the person taking the picture, the person or people possessing the picture, and the person or people distributing the picture. Each role can be played by the same person or by a number of people. While sexting is not a legal term, courts have recognized sexting as the sending or posting of sexually suggestive text messages and 10. Nathan Koppel and Ashby Jones, Are 'Sext' Messages a Teenage Felony or Folly?, WALL ST. J. (Aug. 25, 2010), http://online.wsj.com/article email/SB100014240 527487034470045754494230915522841MyQjAxMTAwMDIwNDEyNDQyWj.html#. 11. The National Conference of State Legislatures provides a list of all the states that are considering or have recently passed legislation regarding sexting. 2010 Legislation Relating to "Sexting," NAT'L CONFERENCE OF STATE LEGISLATURES (Jan. 4, 2011), http://www.ncsl.org/default.aspx?tabid=19696. 12. DENA T. SACCO, REBECCA ARGUDIN, JAMES MAGUIRE, AND KELLY TALLON, THE BERKMAN CTR. FOR INTERNET & Soc'Y, HARVARD UNIv., SEXTING: YOUTH PRACTICES AND LEGAL IMPLICATIONS 3 (June 22, 2010), http://cyber.law.harvard.edu/sites/ cyber.law.harvard.edulfiles/Sacco Argudin MaguireTallonSexting Jun20O0.pdf. 368 The Journalof Contemporary Health Law and Policy Vol. XXVII:2 images, including semi-nude photographs, via cellular phones or over the 13 Internet. 1 The courts' definition does not address the involvement of adults, mostly likely because the facts in the cases heard have only involved juveniles sending nude and semi-nude pictures of themselves to other juveniles. B. The Protection of Children Congress enacted The Protection of Children Against Sexual Exploitation Act (the Act) in 2008 to prohibit the visual depiction of a minor engaging in "sexually explicit conduct," which is defined as "graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, between persons of the same or opposite sex or lascivious simulated sexual intercourse where the genitals, breast or pubic area of any person is exhibited." 15 The statute also includes "graphic or simulated bestiality, masturbation, or masochistic or sadistic abuse, and the lascivious exhibition of the genitals or pubic area of any person" in the definition of sexually explicit conduct.' 6 The statute defines a visual depiction as including "undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format."' 7 13. See Miller v. Mitchell, 598 F.3d 139, 143 (3d Cir. 2010); U.S. v. Vann, 620 F.3d 431, 451 (4th Cir. 2010); U.S. v. Broxmeyer, 616 F.3d 120, 123 (2d Cir. 2010). 14. Miller, 598 F.3d at 146. The district attorney gave the students the option of participating in an educational class that would teach them about gender roles in society rather than face criminal prosecution charges.
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